On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 09-02-0133.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 19, 2012

Before Judges Grall and Skillman.

Defendant Edward S. Brown pled guilty to possessing a firearm and having a prior conviction for possession of a controlled dangerous substance with intent to distribute, making his possession a crime. N.J.S.A. 2C:39-7b. Brown was sentenced to a five-year term of imprisonment with a statutorily mandated five-year period of parole ineligibility. N.J.S.A. 2C:43-7.2(c). He entered that plea following the denial of his motion to suppress the critical evidence, and he now appeals challenging that determination. See R. 3:5-7(d).*fn1 The central question on this appeal is whether the link between Brown's unlawful investigatory detention and the seizure of the handgun was sufficiently attenuated to dissipate the taint and permit the State's use of that evidence against Brown. We conclude that it was not.

Because the parties agreed that the facts were not disputed, the State did not present testimony on the circumstances leading to the search at issue. R. 3:5-7(b)-(c). The motion was decided on the facts stated in an investigation report prepared by Patrol Officer Timothy Long of the Trenton Police Department on the day he and his partner stopped, searched and arrested defendant.*fn2

At about 7:30 p.m. on September 21, 2008, Long and his partner were on routine patrol in a marked police car. They saw Brown walking. Upon seeing the officers, Brown "immediately became startled," appeared "noticeably nervous" and "attempted to hide his face." The officers turned their car around to speak to Brown. Long approached Brown first. Brown "immediately stated, '[O]fficer I ain't doin[g] nothin[g]' and had his hands up."

Long asked Brown where he was going, and Brown said he was going to his girlfriend's house. He did not know her address, however, and "appeared . . . nervous"; he was "sweating profusely" and "shaking his leg." Long asked Brown "why he was so nervous and then placed him in a Terry Frisk position to check for weapons or other contraband." Brown "then" said, "[O]fficer I might have a warrant."*fn3 The trial court subsequently found that "[v]iewed objectively under the circumstances," this "obvious understatement effectively conveyed to the officer that a warrant did exist."

"At this point," Long "felt what [he] believed to be an automatic handgun in the waistband of Brown." Long "immediately recovered same handgun, handed it to [his] partner to clear, and handcuffed Brown taking [him] into custody without further incident." After reaching headquarters, the officers confirmed that Brown had an outstanding warrant and signed a criminal complaint charging Brown with possession of the handgun.

On that evidence, the trial court concluded that the officers' initial approach and questioning of Brown amounted to no more than a non-intrusive field inquiry, which is constitutionally permissible whether or not supported by particularized suspicion. Florida v. Royer, 460 U.S. 491, 497-98, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229, 236 (1983); State v. Elders, 192 N.J. 224, 246 (2007); State v. Davis, 104 N.J. 490, 497 (1986). The court determined that the nature of the encounter changed when Long placed Brown in a position to conduct a frisk, because that police action gave Brown reason to believe he was not free to leave and took the encounter beyond a field inquiry to the point of an investigatory detention. Elders, supra, 192 N.J. at 246-47; State v. Rodriguez, 172 N.J. 117, 126 (2002). Assessing the totality of the circumstances and giving the officers the benefit of inferences that they could draw based on their training and experience, the trial court concluded that the investigatory detention was not constitutionally reasonable because it was not based on specific and articulable facts necessary to give rise to a reasonable suspicion of criminal activity. Elders, supra, 192 N.J. at 247, 249-50.

Recognizing that the factual findings underlying the foregoing determinations are based on the trial court's review of a written report of the police investigation that is equally available to us and not dependent upon the court's credibility determinations or feel of the case, we see no basis for disturbing them. Compare State v. Diaz-Bridges, 208 N.J. 544, 565-66 (2012), with State v. Locurto, 157 N.J. 463, 470-72 (1999). The court's findings are supported, not contradicted, by the record, and there is no crucial evidence relevant to the foregoing findings that the court overlooked or undervalued. See Diaz-Bridges, supra, 208 N.J. at 566; Locurto, supra, 157 N.J. at 471; State v. Johnson, 42 N.J. 146, 162 (1964). Moreover, in concluding that the detention was not constitutionally reasonable, the judge did not err in determining the legal consequence flowing from the facts.

The standards governing the constitutionality of field inquiries, investigatory detentions or stops and protective frisks for weapons are well-settled. For purposes of this case, a brief summary suffices. "The Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect citizens against unreasonable searches and seizures." State v. Privott, 203 N.J. 16, 24 (2010). Based on the minimal nature of the intrusions involved, these encounters are permissibly conducted without a warrant or probable cause.

A field inquiry unaccompanied by compulsion to respond to questions or limitation on the person's freedom to move is not an intrusion sufficient to implicate the constitutional protection. Id. at 24; Elders, supra, 192 N.J. at 246. Thus, no justification is required. Nevertheless, when an officer conducting a field inquiry acts in a manner that would lead a reasonable person to believe he is not free to leave, there is a seizure, albeit brief and minimally intrusive. Elders, supra, 192 N.J. at 246-47; State v. Nishina, 175 N.J. 502, 510-11 (2003). Such a seizure is unreasonable unless "it is based on 'specific and articulable facts which, taken together with rational inferences from those facts,' give rise to a reasonable suspicion of criminal activity." Rodriguez, supra, 172 N.J. at 126-27 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968)).

A frisk of a person whom an officer has detained on reasonable suspicion is an additional intrusion that requires additional justification, because it "'constitutes a severe, though brief, intrusion upon cherished personal security.'" Privott, supra, 203 N.J. at 29 (quoting Terry, supra, 392 U.S. at 24-25, 88 S. Ct. at 1882, 20 L. Ed. 2d at 907-08). The frisk permitted is not one "'to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence[.]'" Privott, supra, 203 N.J. at 25 (quoting Adams v. Williams, 407 U.S. 143, 146, 92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612, 617 (1972)). "Because the intrusion is designed to protect the officer's safety," State v. Roach, 172 N.J. 19, 27 (2002), it is reasonable only if "'a reasonably prudent man in the circumstances would be warranted in his belief that his safety or that of others was in danger.'" State v. Valentine, 134 N.J. 536, 543 (1994) (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909).

In both instances, courts assess the adequacy of the evidence offered to establish a basis for the requisite suspicion and concern for safety, in light of "all the facts and circumstances of the case." Valentine, supra, 134 N.J. 536 at 546.

After considering all of the circumstances disclosed by the record in this case under the foregoing standards, we see no basis for disturbing the trial court's conclusion that this detention, accomplished when the officer placed Brown in the frisk position, was not based on articulable, particularized facts warranting the intrusion. We agree that Brown's initial hiding of his face, his volunteered denial of wrongdoing, his inability to provide his girlfriend's address, and his nervousness indicated by sweating and leg-shaking, without more, were inadequate to give rise to reasonable suspicion of criminality. Nervousness, discomfort and unwillingness to speak to the police are not uncommon reactions to police encounters and not in themselves indicative of criminal activity. Elders, supra, 192 N.J. at 249-50; State v. Carty, 170 N.J. 632, 648 (2002); State v. Richards, 351 N.J. Super. 289, 305 (App. Div. 2002). This record does not include any other indicia of wrongdoing or dangerousness that would put Brown's reactions in a different light. There is no evidence of furtive or threatening gestures or about the characteristics of the neighborhood or Brown's criminal record that would make his walk in Trenton at 7:30 on a September evening suspicious or suggest that he posed a danger. Cf. State v. Johnson, 171 N.J. 192, 217 (2002) (high crime area).

We are not persuaded by the State's argument that Brown's disclosure of his warrant gave the officers a valid reason to conduct the frisk they apparently commenced before he announced the possibility of a warrant. True, the issuance of a warrant "suggests that the sought-after suspect may be wanted for a grave offense or that the suspect has ignored less intrusive process." State v. Jones, 143 N.J. 4, 13 (1995). But such information about an unspecified and unrelated event, without more, says little about a present risk of danger to the officers.

We turn to consider the central question on this appeal, which is whether the trial court properly concluded that the admission Brown made after Long placed him in a frisk position - he "might have a warrant" - is an act that dissipates the taint of the unreasonable detention. A proper application of the legal principles precludes a finding of adequate attenuation on this record.

Through the exclusionary rule, evidence obtained through an unlawful search or seizure "is generally excluded as proof against the defendant." State v. Johnson, 118 N.J. 639, 651 (1990). This rule is intended to deter unlawful police conduct by depriving the State of the evidence. State v. Badessa, 185 N.J. 303, 310-11 (2005) (quoting State v. Evers, 175 N.J. 355, 376 (2003)).

The exclusionary rule is applied in accordance with its rationale and in recognition of the fact that it leads to the exclusion of reliable evidence. Thus, there are exceptions that limit application "to those circumstances where its remedial objectives can best be achieved." State v. Williams, 192 N.J. 1, 15 (2007).

One exception is based on attenuation between unreasonable police conduct and the recovery of the evidence at issue. Pursuant to this exception, evidence is admissible "when the connection between the unconstitutional police action and the evidence becomes so attenuated as to dissipate the taint from the unlawful conduct." Badessa, supra, 185 N.J. at 311 (citations and internal quotation marks omitted). When the State relies on attenuation, "the burden of showing admissibility rests, of course, on the prosecution." Brown v. Illinois, 422 U.S. 590, 604, 95 S. Ct. 2254, 2262, 45 L. Ed. 2d 416, 427 (1975).

The State's ability to use the evidence at trial depends on "'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'" Id. at 599 (quoting Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 417, 9 L. Ed. 2d 441, 455 (1963)). Stated differently, "the critical determination is whether the authorities have obtained the evidence by means that are sufficiently independent to dissipate the taint of their illegal conduct." Johnson, supra, 118 N.J. at 653.

Three factors are considered in making that determination: "(1) the temporal proximity between the illegal conduct and the challenged evidence; (2) the presence of intervening circumstances; and (3) the flagrancy and purpose of the police misconduct." Williams, supra, 192 N.J. at 15 (quoting Johnson, supra, 118 N.J. at 653); see Brown, supra, 422 U.S. at 603--04, 95 S. Ct. at 2261--62, 45 L. Ed. 2d at 427. The factors are assessed and weighed in light of the totality of the circumstances, and no single factor is determinative. State v. Worlock, 117 N.J. 596, 625 (1990).

The State relies, in part, on Williams. That case involved a defendant who was subjected to a frisk of "doubtful" propriety conducted in a high-crime area on a tip that a person whose description defendant met was selling drugs. Williams, supra, 192 N.J. at 4-5. The Court determined that it was not necessary to address the validity of the doubtfully proper frisk, because instead of complying with the frisk, Williams committed a crime by pushing the officer aside and taking flight. Id. at 9-10.

The Court held that "defendant's resistance and flight, which amounted to obstruction, broke the link in the chain between the initial unconstitutional stop and the later seizure of the weapon," which was discovered during a search incident to defendant's arrest for that crime. Id. at 5. For that reason, the Court held that "[u]nder such circumstances, suppression of the evidence is not warranted by the exclusionary rule." Ibid. In the Court's view, the "taint" of any illegality in the officer's failed frisk was "significantly attenuated by defendant's" conduct that "caused the handgun's later seizure." Id. at 10-11.

Assuming, without deciding, that Brown's unconfirmed belief that there was a warrant for his arrest gave the officers adequate ground to arrest him on that warrant, this case is similar to Williams in two respects. Both men gave the officers a reason to make an arrest during an investigatory stop and to conduct a search incident to that arrest leading to the discovery of the evidence. In addition, Brown's admission, like Williams' resistance, was contemporaneous with the police action undertaken to conduct a frisk.

Apart from the similarities noted above, a comparison of the facts of these cases in light of the three factors relevant to attenuation discloses striking and material differences. The break in the chain caused by Williams' criminal resistance is apparent. Instead of complying with the unlawful frisk and seeking redress at a later date, he forcibly and unlawfully prevented the frisk and fled. Id. at 5. The police recovered the gun from his person in a separate frisk that followed his apprehension for that crime. Ibid. There is no similar basis for separating this unreasonable attempt to frisk and Brown's admission about his warrant, which he made from the frisk position and while giving the officers the cooperation they had a right to expect. Here, Brown's admission played no role in the frisk that led to the discovery of the gun and his arrest. Following Brown's disclosure, the officer simply proceeded to conduct the frisk he intended to conduct before the statement. In fact, the officers were apparently indifferent to the news about the warrant. They made no attempt to confirm its existence until they had arrested Brown and taken him to headquarters.

Another significant difference between this case and Williams is that in this case there is evidence of relatively egregious impropriety in the law enforcement purpose. The officer's report indicates that he placed Brown in a frisk position "to check for weapons or other contraband." Even assuming a good faith and mistaken assessment of the reasonable suspicion warranting an investigatory stop, a search for contraband is a mission far beyond the well and long established boundary of a permissible investigatory stop and frisk. In Williams, the Court was able to conclude that "even though the officers may have acted mistakenly, they did so in good faith[,]" and "their actions could hardly be described as flagrant misconduct." 192 N.J. at 16. Given this officer's admission of an intent to search "for weapons or other contraband" and the clarity of the law prohibiting a frisk for contraband on reasonable suspicion, this police action is not readily or easily characterized as a good faith mistake.

In Williams, the Court was able to conclude that "it would be farfetched to believe that police officers will attempt suspicionless investigatory stops or pat downs - to which the exclusionary rule applies - in the hope that a suspect will commit an independent crime that will be the basis for a lawful search." 192 N.J. at 17. Here, where the State relies on the suspect's compliance and cooperation with an officer's unlawful frisk as an intervening act, an opposite conclusion about the impact on future police conduct is warranted.

In sum, we cannot conclude that the State established adequate attenuation. Considering the totality of the circumstances and balancing the relevant factors, Brown's admission was not an intervening event that led to a search incident but a fortunate reaction to the unlawful conduct directly evoked from a person cooperating with the officer's overzealous decision to place him in a frisk position.

There is support for our conclusion that the exclusionary rule should bar the admission of the gun seized in the circumstances of this case without regard to whether it could be viewed as discovered during a lawful search incident to a lawful arrest on the warrant. In United States v. Williams, 615 F.3d 657 (6th Cir. 2010), the Court rejected the government's argument that it established sufficient attenuation by showing that a suspect subjected to an unlawful investigatory stop admitted that he might have a warrant when asked. Id. at 661. The Court concluded that the defendant's admission was "itself 'primary evidence obtained as a direct result of an illegal . . . seizure' that should be suppressed under the exclusionary rule." Id. at 670 (quoting Sequra v. United States, 468 U.S. 796, 804, 104 S. Ct. 3380, 3385, 82 L. Ed. 2d 599, 608 (1984)).

The fact that the defendant in United States v. Williams made his admission in response to a question asked by an officer does not preclude us from relying upon the decision. Brown's response was also prompted by unlawful, albeit different, police conduct. Here, the admission followed the police action taken to position Brown for a frisk to uncover "weapons or other contraband" as surely as the admission of the defendant in United States v. Williams followed the officer's question. Brown's disclosure of the warrant while in that position cannot be viewed as independent of the officer's action.

We recognize that other jurisdictions have determined that an officer's discovery of an outstanding warrant while unlawfully detaining a suspect is an intervening event tending to attenuate the link between the detention and the seizure of evidence in a lawful arrest made pursuant to the warrant. See, e.g., United States v. Green, 111 F.3d 515, 522 (7th Cir.) (concluding that the officers' discovery of a warrant was an intervening circumstance not dependent upon their exploitation of the illegal detention or defendant's reaction to it and was sufficient to dissipate the taint of the illegal detention and allow the government to use evidence seized in a lawful search incident to the arrest), cert. denied, 522 U.S. 973, 118 S. Ct. 427, 139 L. Ed. 2d 328 (1997); United States v. Simpson, 439 F.3d 490, 493 (8th Cir. 2006) (finding sufficient attenuation based on officer's discovery of warrant for defendant's arrest after his unlawful arrest, where the discovery was not attributable to any action on defendant's part and the officer's mistaken assessment of the facts was not flagrant); see generally Jacobs v. State, 128 P.3d 1085, 1088-89 (Okla. Crim. App. 2006) (discussing cases demonstrating an apparent conflict on the point). Having reviewed the decisions, we have not found a case relying on the existence of a warrant as attenuating, where, as here, a cooperating suspect disclosed the warrant after placement in a frisk position by an officer looking for weapons or contraband. For that reason, we do not find those cases persuasive here.

This opinion should not be understood to suggest that officers may not arrest on an outstanding warrant. The invalidation of an arrest on the warrant is not a necessary consequence of precluding the State from using the fruit of the unlawful investigatory detention in a prosecution for a new crime. An arrest warrant issued prior to an investigatory detention is based on reasons wholly unrelated to and not tainted by any illegality in the detention, but in the circumstances of this case the evidence obtained as a consequence of the unreasonable detention and frisk is tainted.

Cf. Green, supra, 111 F.3d at 521 (finding attenuation and noting that it would be startling to suggest that an illegal stop precluded an arrest on a warrant). Nor do we suggest that the discovery of an arrest warrant could not dissipate the taint under circumstances other than those presented here. Under the controlling case law, the determination requires an assessment of the totality of the circumstances in light of factors relevant to proper application of the exclusionary rule.

The order denying the suppression motion is reversed; the conviction and sentence are vacated; and the matter is remanded for further proceedings on this indictment.

Our website includes the main text of the court's opinion but does not include the
docket number, case citation or footnotes. Upon purchase, docket numbers and/or
citations allow you to research a case further or to use a case in a legal proceeding.
Footnotes (if any) include details of the court's decision.

Buy This Entire Record For
$7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.